O'Callaghan NO v Chaplin

• Jurisdiction: South Africa
• Judge: Innes CJ, De Villiers JA, Kotzé JA, Wessels JA and Stratford AJA
• Judgment Date: 02 February 1927
• Citation: 1927 AD 310
• Hearing Date: 14 October 1926
• Court: Appellate Division

Innes, C.J.:

On the 5th April, 1924, Magda Rorvik, a maid in the service of Mrs. O'Callaghan, went to the respondent's house at Muizenberg to see Johanna Ibsen, Lady Chaplin's maid; she took with her the two year old son of her mistress. The door was opened by an Indian servant, who told her to go upstairs. She went up to Ibsen's bedroom, where there were three white Highland terriers, the property of the respondent. While the two maids had tea, the child sat on the bed with the dogs. When Rorvik was preparing to leave, Ibsen decided to walk with her and to take the terriers, who became very excited at seeing the leash which she was wont to use on such occasions. Soon after, while standing with his nurse in the passage just outside the bedroom, the child cried out, and on examination it was found that one of his legs had been bitten and the other scratched. There can be no doubt that one of the dogs had bitten him. He was taken home and attended to, and in due course summons was issued in the magistrate's court by Charles Justus O'Callaghan, as father and natural guardian of the minor, claiming £30 in respect of the injury to the boy, and medical fees and chemist's bills paid. The magistrate found for the defendant; the Cape Provincial Division upheld him, and the matter is now before us for final decision. The facts are few and simple; but the legal position is complicated. And it will be convenient first to examine the Civil law, and then to consider the extent to which it may have been modified (a) in Holland and (b) in South Africa. I do not propose to discuss the numerous authorities in detail, save where really necessary, but will endeavour as shortly as possible to state their effect.

In Roman law there were three actions by which compensation could be claimed for damage done by a dog: - (1) of these the actio de pauperie was certainly the earliest. It come down from the Twelve Tables; possibly it was older still. Pauperies meant damage done without legal wrong on the part of the doer - damnum sine injuria facientis datum. An animal could do no legal wrong because it had no reason. It was only mischief done by animals, therefore, which constituted pauperies. The action, however, did not cover the misdeeds of every animal. Originally it applied only to damage done by quadrupeds, by which term was understood cattle (pecus). But it was subsequently widened, and in particular dogs were specially brought within its operation. The action was maintainable only in respect of harm done by an animal acting contrary to the nature of its class - contra

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naturam sui generis - that is to say, under excitement or vice which was contrary to the nature of such animal. It was a noxal action, and it lay against the owner of the offending animal, who was in possession of it at litis contestatio. (see Dig.: 9.1 passim Inst. 4.9. - Paul Sent. 1.15.1 etc.) The basis of liability was ownership. There was much philosophic discussion among the Commentators in regard to the reason why the, law of the Twelve Tables made an owner liable for damage done by his animal. And naturally there was much disagreement. At least four theories were advanced. The matter is dealt with by Gluck (vol. 10, sec. 694, p. 287) who disagrees with both Pothier and von Vangerow. But to useful purpose would be served by entering into the details of the controversy, because the language of the law is perfectly plain and clear and imposes liability upon the owner as such.

(2) The Aedilitian action probably came next in point of time. The Edict prohibited the bringing or keeping of certain animals on a public place or thoroughfare, either loose or so chained as not to prevent their doing harm. If a breach of the Edict resulted in the death or injury of a freeman a penalty was payable. In respect of other damage double compensation was recoverable. Speaking generally, the prohibited animals were wild beasts, but they included a dog (placed at the head of the list) and an ordinary boar. They were all regarded as likely to do mischief. An action under the Edict was not noxal. (see Dig. 211.1. 40-42; Inst. 4.9.1.)

(3) An action under the Lex Aquilia was also available and, widened in practice, it was perhaps more comprehensive than the other two. It dealt with damage due to the legal wrong of the doer - damnum injuria datum, - but such damage might be due to negligence as well as to intent. It covered cases where the harm done by an animal resulted from the negligence of a man. (Inst. 4.3.3; Dig. 9.1.1 par. 4 & 5, etc.)

To summarize: - The actio de pauperie gave relief against the owner of a domesticated animal which acted viciously or from inward excitement contrary to the nature of its class. The basis of liability was ownership. The Aedilitian action confined in its operation to breaches of the Edict was founded on culpa in its wide sense, but not on culpa in the sense of negligence. Under the Lex Aquilia regard was primarily had, not to the temper of the animal, but to the conduct of the man, it was based,

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not on ownership, but either on negligence or design. Obviously those remedies often overlapped; but often they did not. Harm done by a domestic animal not contra naturam sui generis could not be sued for de pauperie though its owner had been negligent. And conversely damage viciously inflicted by such an animal could not, in the absence of culpa, be recovered under the Aquilian procedure. The examples given in the Digest are instructive on this point.

The next question is whether the Roman law was adopted in Holland, or whether the basis of liability was in any material respect modified. The authorities are confusing, because they do not always distinguish one basis of liability from another, and because they sometimes rely upon local Ordinances and Keuren as if they were of general application, and sometimes upon the laws and customs of other Provinces. As to whether a defendant could claim the benefit of noxae deditio (a point which could only arise in an action de pauperie) there was undoubtedly a difference of opinion. Vinnius (Inst. 4.9), was perhaps the most notable authority who thought that the option was no longer recognised, and that the damage in such cases fell to be assessed by the Court. He dealt with the matter in a single sentence: - "Hodie noxae deditio non usurpatur, sed damnun datum aestimatur arbitrio judicis." He relied on two authorities only - Busius and Wesembec, though he noted that Grotius and Groenewegen held to the Roman law. I have not been able; to consult the first authority, but a reference to the second is interesting. After pointing out that an owner lost the benefit of noxae deditio if he falsely and knowingly denied his ownership (which of course was Roman law; see Dig. 9.1 sec. 15) he remarked that by sec. 140 of the Criminal Ordinance of Charles V. the amount payable was assessed by the Judge. He added that by the law of Saxony an owner who retained an animal which had done harm was always (indistincte) liable, but an owner who did not so retain it but abandoned it as derelict was freed from liability. (Wesembec: Comm. in Pand. 9.1 sec. 6.) The clause of the Criminal Ordinance which the jurist had in mind was clearly sec. 136, which imposed a penalty on the owner of a dangerous animal that injured anyone. The owner of such an animal, it was decreed, should get rid of it; if he killed or hurt any person the owner became liable to a penalty graduated according to the circumstances. There was some discussion among the Commentators as

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to whether the provision of the statute affected the civil action de pauperie, and as to whether it applied to domestic animals at all. Boehmer (Med ad Const. Crim. Car. V. sec. 136 p. 639) argued by a reference to another clause (see, 150) that domestic animals acting dangerously and contrary to their nature were included, but he emphatically endorsed the opinion of Hahn that the penalty assessable under the Ordinance was purely criminal, and that the civil remedy was not affected: - "Quicquid tamen sit solo poena criminibus hic proponitur, non aeque de persecutione civili agitur; adeoque actionem quadrupedariam per huncart. haud sublatum esse, recte asserit Hahn." Strykius (Pand 9.1 sec. 5) took the same view. He added that b; Saxon law the owner could free himself from liability for damage by getting rid of the animal: - "Non teneri jure Saxonico dominum bestiae vel ad damni reparationem vel ad noxae deditionem si illam, comperto damno, mox dimiserit." (Sec. 6.) It could hardly be said, therefore, that Wesembec justified the reliance which Vinniusplaced upon him. Wissenbach (ad. Pand. 9 disp. 21 thes. 1) also thought that noxal surrender had become obsolete. "Moribus hodiernis," he said, "noxales actiones feré exoleverunt, daturque directum judicium sine noxam, deditione adversus dominum quadrupedis quae noxam nocuit, facta arbitrio judicis aestimatione." In support of that statement he quoted two statutes the section of the Criminal Ordinance of Charles V, which has already been discussed, and Law 2. 3 sec. 4 of the Province of Friesland. There was no authority for the view, he added, that if the owner of the quadruped abandoned it the action against him fell away, but if he retained it after it had done damage (sin receperit post pauperiem factam) he became liable absolutely and without the benefit of noxae deditio. For the latter statement he relied upon Wesembec - the passage already referred to - and upon a Frisian decision under the local statute above quoted. (Sande. 5.7.5.) Wissenbach, it should be noted was professor of law at Franeker University in Friesland. (see Wessels, Hist. R.D. Law p. 298). I now turn to a passage from Matthaeus (de Crim. 47.3.3.4) which is interesting. The writer was discussing the assessment of damages; and, having indicated the practice under the Aquilian procedure, he...